A Bias Claim Today may lead to a Retaliation Charge Tomorrow

Retaliation charges are the most common type of employment claim against companies.  And they “are more difficult to defend than the underlying discrimination claim with which they often are coupled in lawsuits, legal experts say.”  Retaliation charges are often easier to prove in court, and juries are more willing to believe managers capable of retaliation than they are of discrimination.

Management can take steps to avoid some retaliation charges after discrimination charges have been made.  One important step is to make sure there is some distance, preferably six to nine months, between the time a complaint is made and any action taken that could be considered retaliatory.  Good record-keeping is also important, especially reports on problem employees.

When an employer is considering terminating an employee, it is often safer to do so sooner rather than wait.  If the employee learns that her job is in jeopardy, she may file a discrimination suit and, after being fired, claim retaliation.  The employer now needs to prove that its decision was not retaliatory.

Retaliation charges often reflect the employee’s perceptions rather than the employer’s intent.  For example, if a worker asks for a different shift after filing a discrimination claim, he may interpret rejection of his request as retaliation.  “Misinterpreted actions can include a demotion or pay cut introduced for nonretaliatory reasons, or even something seemingly inconsequential, such as wishing one employee a happy birthday but neglecting to do the same for the complaining worker.”

“The employee doesn’t have to prove that discrimination took place in order to establish a claim for retaliation, as long as the employee’s complaint of discrimination has met the definition of ‘protected activity,’ then the discrimination complaint can be the basis for a retaliation claim,” said a partner of a major nation-wide law firm.

From Business Insurance, Sept. 19, 2011 issue, pp. 16-18.